Matthew D. Marquardt, Editor


Roll-up Availability of the Classics
The Right of Publicity
Infringement Insurance
Basic Copyright Contracts

Roll-up Availability of the Classics

In a world in which things done twenty years ago are considered ancient history, much focus is placed on the new -- on current events, on new ideas, new technology, new books, new music, new movies. Arguably too much. There is much in our heritage which continues to intrigue us, to entertain, elevate and amuse. The past is rich in literature, music, and more. And as time sweeps us inexorably into the future, more and more of the rich material of the past is laid open for public use: copyrights expire, and works pass into the public domain. For example, the copyrights to many of the works of P.G. Wodehouse, Damon Runyan, Irving Berlin, Dmitri Shostakovich, Max Steiner, Howard Hawks, and others -- even Walt Disney -- are expiring, and many of these works are becoming available for the use of whoever wants them. Yet the content of many of these works retain great enduring value for those who bring them to the public.

Care must be exercised in exploiting such works, however. Copyrights can exist at many different levels, and arise at the time of creation or publication of the creative effort. Forewords and prefaces, for example, are often works distinct from those with which they are presented. Printing styles, credits, even pagination may be the subject of copyrights. And other rights may independently control or restrict the use of various works in certain circumstances -- for example, the right of publicity, or even, in some instances, trademark or service mark rights.

Right of publicity "Comes of Age"

Many observers feel that the right of publicity -- "the inherent right of every human being to control the commercial use of his or her identity" -- has in the last decade and a half come of age as an independent legal right. That is, as a legal right distinct from the rights associated with trademarks, copyright, false advertising, and the right of privacy. The right of publicity, for example, might be used to protect the rights of a sports figure in playing cards bearing his or her image, or the rights of actors -- perhaps even their estates -- in classic movies.

Infringement Insurance

As "intellectual property" -- e.g. patents, copyrights, trademarks, and trade secrets -- continues to gain importance in a shrinking, information-oriented world, it is an unfortunate fact that the number of infringement lawsuits is quickly rising. As with virtually every other conceivable catastrophe, it is possible to insure against damage caused by infringement -- including the cost of defending lawsuits. But such insurance tends to be expensive. Thus many companies, on facing lawsuits, have relied on standard corporate liability policies to cover defense costs, arguing that the wording of standard "advertising injury" clauses covers defense costs in infringement cases. Many companies have succeeded in such arguments with their insurance carriers, but many have not -- and insurance companies are giving increasingly careful, grudging attention to such claims. Publishers more than other companies need to be very sensitive to infringement claims. Check your policies, and if you have questions, ask!

The Editor

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